Fight to Stop Fatal Patent Bills Heats Up

Fight to Stop Fatal Patent Bills Heats Up

Patent bills in Congress threaten to destroy "the innovation ecosystem that has enabled America to be the world leader in innovation." Here's why.

Thanks to support from inventors and inventor groups all over the country, Randy Landreneau and Paul Morinville of US Inventor and Independent Inventors of America are continuing their fight to stop bad patent bills: The House’s Innovation Act, H. R. 9, introduced by Rep. Bob Goodlatte, R-Va., on Feb. 5, 2015, with the “Manager’s Amendment” version passed by the House Judiciary Committee on June 11, and the Senate’s PATENT Act, S.1137, introduced by Sen. Charles Grassley, R-Iowa, on April 29, with the “Manager’s Amendment” version passed by the Senate Judiciary Committee on June 4.

In his latest email update, Landreneau reports that he held 65 meetings with House Congressional staff in the last two weeks of June to educate them on why H.R. 9 would crush American innovation. He attached his latest paper, “The Innovation Act is Fatal to the American Innovation Ecosystem” and Morinville's latest paper, “We’ve Been Googled.”

In his paper, Morinville states, "H.R.9 creates a Patent System without Inventors. Over the last decade, Google and others have spent hundreds of millions of dollars to lobby Congress and produce an ingenious 'patent troll' narrative, which distorts the reality of invention in America. In this decade long war on inventors, H.R.9 is the Google lobby’s latest accomplishment. Not surprisingly, H.R.9 is not directed to fixing the fictional problem of 'patent trolls.' Instead, H.R.9 mounts its considerable damage on the patent system in general, specifically harming inventors and small patent-based businesses."

Morinville explains, "If this bill becomes law, inventors will not be able to enforce their patent rights against moneyed corporations like Google. However, moneyed corporations like Google will still be able to enforce their patents against small businesses with even more devastating consequences to those small businesses. Patent litigation is about risk and cost versus reward. If risk or cost is too high in relation to reward, a patent cannot be enforced."

In his paper, Landreneau states, “With presumptive Loser-Pays, regardless of the merit of any case, the party that does not prevail will automatically owe the other side its legal costs, which could exceed $1,000,000. To avoid this, the non-prevailing party will be forced to re-litigate the case to prove each point objectively reasonable.” He further explains that in addition to making every case more expensive, there will be an additional, even more damaging effect on independent inventors.

The independent inventor will almost always require a contingency attorney to stop the theft of his or her property. Under presumptive Loser-Pays, his attorney will have to be willing to go the extra mile, after losing, for no pay. This will cause many independent inventors to not be able to find representation and have any access to justice.

Why is this important? Because most new technologies, especially break-through or disruptive technologies come from individual inventors who either start a company or license their technology to companies that are better able to take them to the market.

As a director on the board of the San Diego Inventors Forum, I see new consumer products and break-through technology introduced at our monthly meetings, and the best of these compete in our annual inventors' contest for best new consumer product and best new technology. Our next inventors' contest will be held on August 15th. All contestants must have applied for a patent before they can participate. The future success of their product or technology is contingent upon their having a patent they can protect from infringement. Their ability to raise the financial investment they need to bring their product to the marketplace depends upon their being able to protect their patent. No investor will take the risk of investing in a product or technology that cannot be protected.

Squashing American Innovation

I will not repeat a discussion of what is wrong with H.R. 9 and S.1137 that I discussed in a previous IndustryWeek article, "Which Patent Reform Bill Doesn’t Destroy the American Patent System?" but suffice it to say that these bills would essentially destroy the American patent system. The Loser-Pays clause would make it virtually impossible for independent inventors and small businesses to protect a patent and get investors. Only large corporations would be able to absorb the costs of patent infringement litigation. The economic benefits of patents granted in different metropolitan areas of the U. S. could come to a screeching halt if either of these two bad patent bills is passed. Either bill would squash the American innovation that is so essential to our national prosperity and the prosperity of many metropolitan areas.

In a February 2013 Brookings Institution report, "Patenting Prosperity: Invention and Economic Performance in the United States and its Metropolitan Areas," an analysis of national and metropolitan area invention from 1980 to 2012, revealed:

  • "The rate of patenting in the United States has been increasing in recent decades and stands at historically high levels.
  • Most U.S. patents—63%—are developed by people living in just 20 metro areas, which are home to 34% of the U.S. population...the metro areas with the highest number per capita are San Jose; Burlington, Vt.; Rochester, Minn.; Corvallis, Ore.; and Boulder, Colo.
  • Inventions, embodied in patents, are a major driver of long-term regional economic performance, especially if the patents are of higher quality.
  • Research universities, a scientifically educated workforce, and collaboration play an important role in driving metropolitan innovation.
  • Patents funded by the U.S. government tend to be of especially high quality, and federal small business R&D funding is associated with significantly higher metropolitan productivity growth."

Of interest to those of us in California is the fact that when comparing the average granted patents per year and the patents per million residents from 2007-2011, California ranks very high. The report states "… a few large metros notably changed their share of U.S patents. At the top, San Jose moved up from ninth to first, and San Francisco moved from seventh to fourth, moving ahead of Chicago, Philadelphia, Detroit, and Boston. Seattle and San Diego moved up 15 and nine places, respectively, to become seventh and eighth. Meanwhile, Austin and Raleigh moved up 41 and 55 places, respectively, to become 11th and 20th. Cleveland fell 10 slots from 13th to 23rd, while Philadelphia fell from fourth to 13th."

In his paper, “The Innovation Act, H.R.9 is Fatal to the American Innovation Ecosystem,” Randy Landreneau explains why H.R. 9 would be harmful, saying, “A key reason that America has out-innovated the rest of the world for 200 years is the way the unique American Patent System has not only encouraged individuals to innovate, it has also facilitated the flow of capital into the resulting innovations. A key ingredient in this successful recipe has been the ability to stop the theft of the intellectual property represented by a patent, which results in a valuable patent asset that can be used to attract venture capital and build a successful enterprise… An early-stage investor in a start-up that fails often ends up with little more than the patent. If he then has limited patent rights and significantly greater risk in defending the patent, as is being proposed, then the patent asset loses significant investment value. In a scenario that is already high in risk, the changes proposed by The Innovation Act will severely reduce investment, and the incentive for American innovation will be lost. What is being proposed destroys the innovation ecosystem that has enabled America to be the world leader in innovation.”

It is expected that the House will vote on H.R. 9 the week of July 13th, so it is critical that we add our voices to its opposition now. The Senate’s S. 1137 will be on the Senate floor soon as well. More attention seems to be paid if you call the Washington, D. C. office of your Congressional representatives and senators than their local office. If you don't know the names of your representative or senators, search online or call the main switchboard number 202-225-3121 and ask for your representative or senators. Tell your representative to oppose H. R. 9 and tell your senators to vote "no" on S.1137. Ask your senators to support the Strong Patents Act of 2015, S. 632. Don't let them destroy the goose that lays the golden egg ─ the American Patent System that fosters American innovation, which provides jobs and prosperity to our country.

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